Summary
affirming order granting summary judgment to City where plaintiff did not plead prior written notice
Summary of this case from Zinz v. Empire City Subway Co.Opinion
Argued April 13, 2000.
June 5, 2000.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Hutcherson, J.), dated May 25, 1999, which granted the motion of the defendants City of New York and the New York City Police Department for summary judgment dismissing the complaint insofar as asserted against them.
The Breakstone Law Firm, P.C., Bellmore, N.Y. (Jay L. T. Breakstone of counsel), for appellant.
Michael D. Hess, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Grace Goodman of counsel), for respondents.
Before: SONDRA MILLER, J.P., WILLIAM D. FRIEDMANN, ANITA R. FLORIO, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
Pursuant to Administrative Code of the City of New York § 7-201(c)(2), a plaintiff must plead and prove that the City had prior written notice of a street defect before it can be held liable for its alleged negligence in failing to maintain its streets in a reasonably safe condition (see, Woodson v. City of New York, 93 N.Y.2d 936; Katz v. City of New York, 87 N.Y.2d 241; David v. City of New York, 267 A.D.2d 419 [2d Dept., Dec. 27, 1999]; Solone v. City of New York, 238 A.D.2d 332). It is also settled that transitory slippery conditions, such as those presented by oil (see, Baez v. City of New York, 236 A.D.2d 305), sand (see, White v. Town of Islip, 249 A.D.2d 464; Herman v. Town of Huntington, 173 A.D.2d 681), loose dirt (see, Rogers v. Town of Ramapo, 211 A.D.2d 775), or ice (see, Grant v. Incorporated Vil. of Lloyd Harbor, 180 A.D.2d 716), are the types of potentially dangerous conditions for which prior written notice must be given before liability will attach. The plaintiff did not plead, and the municipal defendants did not receive, prior written notice of the oil spill that allegedly caused the plaintiff's accident. Thus, unless this case falls within a recognized exception to the requirement of prior written notice, no liability can be imposed on the municipal defendants (see, Sommer v. Town of Hempstead, 271 A.D.2d 434 [2d Dept., Apr. 3, 2000]; Caramanica v. City of New Rochelle, 268 A.D.2d 496 [2d Dept., Jan. 24, 2000]; Zinno v. City of New York, 160 A.D.2d 795).
It is well settled that a municipality which has enacted a prior written notice statute may not be subject to liability for personal injuries unless it either received actual written notice of the dangerous condition, its affirmative act of negligence proximately caused the accident, or where a special use confers a special benefit on the municipality (see, Amabile v. City of Buffalo, 93 N.Y.2d 471; Poirier v. City of Schenectady, 85 N.Y.2d 310). The instant case, involving an oil spill of unknown origin on a City thoroughfare, does not fit within these exceptions. Accordingly, the respondents' motion for summary judgment was properly granted.